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Yesterday I joined with the Center for Biological Diversity to sue the Department of State for the Keystone XL GIS data, as well as the contracts with private consultants who prepared the environmental impact reports. My FOIA cases with the DoS have been pending for over five years and have never received proper consideration.

The official PR release can be found online:
http://www.biologicaldiversity.org/news/press_releases/2017/keystone-xl-pipeline-05-18-2017.php

WASHINGTON— The Center for Biological Diversity and Thomas Bachand filed suit today against the U.S. Department of State to obtain information on the route of the Keystone XL Pipeline, as well as contracts and correspondence with private consultants involved.

The State Department is required to make public information about the route of the pipeline and related documents under the Freedom of Information Act.

“We can’t fully understand Keystone XL’s threats to our water and wildlife until the Trump administration releases public documents about this dangerous pipeline’s route,” said Amy Atwood, the Center’s endangered species legal director. “With the State Department illegally refusing to provide information about a leak-prone pipeline that could pollute hundreds of waterways, we’re left with no option but to sue.”

Today’s suit was filed in federal court in Washington, D.C. on behalf of the Center, which has advocated against the Keystone XL Pipeline for years, and Thomas Bachand. Bachand is the creator of the Keystone Mapping Project, an internationally recognized online multimedia and photography project that examines land use, climate policy and transparency through an exploration of the Keystone Pipeline, the 2,000-mile diluted bitumen pipeline that would bisect the North American Continent.

The lawsuit demands that the State Department provide specific kinds of records — known as geographic information systems, GIS layers or Shape files — that would reveal precisely where the Keystone XL Pipeline route would go, if constructed. The suit also demands correspondence and contracts the State Department signed with private consultants who prepared the environmental reviews for the pipeline.

“The Keystone XL GIS data is referenced tens of thousands of times in the State Department’s environmental review, yet the data itself is fully redacted,” said Thomas Bachand. “State Department officials claim they do not have the data, but if that’s the case then how can they have possibly considered its environmental consequences? The truth is that the State Department unquestionably possesses and controls this critical information.”

By revealing the precise pipeline route, the GIS layers will clearly show the habitats, private lands, farms, prairies, aquifers, rivers, streams and other sensitive places where the pipeline would be built. The contracts with private entities the State Department hired to prepare environmental reviews for the project will help shed light on the circumstances related to the State Department’s refusal to provide the GIS data.

The plaintiffs are represented in the lawsuit by public interest attorney David A. Bahr.

The Center for Biological Diversity is a national, nonprofit conservation organization with more than 1.3 million members and online activists dedicated to the protection of endangered species and wild places.

As an addendum to my December post chronicling the latest delay in my five-year FOIA saga with the Department of State (DoS), the Office of Government Information Services (OGIS) has informed me that the DoS has pushed their estimated response dates back six months to May and July of this year. The OGIS is the governmental body tasked with overseeing FOIA compliance and whose mission it is to resolve disputes between government agencies and requesters.

As readers of this blog know, my FOIA requests for the Keystone XL pipeline milepost data began in 2011. Initially the DoS claimed not to have the data, only to later say that the data did not belong to them. The DoS obviously knows where the milepost data is as it is referenced tens of thousands of times in their environmental impact statements and is required in order to interpret their analysis. We know that the records belong to the DoS because the Keystone XL Master Service Agreement with ERM says so. We also know that the Keystone XL data is in the public domain as Keystone routing data has been made public by the states crossed by the pipeline. The route is also visible on Google Earth.

According to the OGIS:

OGIS’s Mediation Team Lead was able to get a new estimated date of completion for your two FOIA requests. Unfortunately, State Dept. is overwhelmed with the several FOIA lawsuits concerning the former Secretary Clinton’s emails which has resulted in many cases that State had estimated to work and complete by December fall back into their backlog queue.

While it is helpful that OGIS has obtained the status of my FOIA requests from the DoS, I have suggested to them that, considering the DoS’ record of obfuscation and delay, a substantial conversation with the DoS is certainly in order.

In a recent email updating the status of my FOIA case, the Department of State (DoS) claims that, due to an increase in FOIA lawsuits, FOIA response times have doubled. The response times are already hopelessly behind the 21 days mandated by Congress. The Keystone Mapping Project has been waiting nearly four years for an adequate response to it’s FOIA requests.

Despite the rejection of the Keystone XL pipeline permit by the White House last month, TransCanada has vowed to revive the pipeline at a future date. The DoS’ most recent estimates for my two outstanding FOIA requests were December 2015 and July 2016. For all intents and purposes, another promised deadline has passed. In an October email the DoS blamed an increase of FOIA lawsuits on the inordinate delay:

There has also been a marked increase in the number of FOIA lawsuits filed against the Department in recent years. In FY 2014, the Department experienced a 60 percent increase in FOIA lawsuits, which presented challenges that have impeded the Department’s best efforts to process material quickly. In FY 2015, 59 new FOIA lawsuits were filed against the Department, which is a 103 percent increase when compared to the same time period during the prior fiscal year, and is more than the total number of FOIA suits filed against the Department in the entirety of FY 2014.

This significant increase in the number of FOIA lawsuits is drawing on limited and already over-burdened resources and has necessitated the continued realignment of resources to meet court-imposed deadlines associated with this increase in litigation.

If my FOIA requests are any indicator of the larger trend, it seems that the DoS may have brought this backlog upon themselves by denying requests for dubious reasons. Clearly the Keystone XL pipeline’s mapping data required for evaluation of the Keystone FEIS, SEIS, and FSEIS, as well as the contracts and agreements with the authors of those reports, are the property of and in the possession of the DoS. That the DoS has projected months and years of delay in producing these documents is baffling, particularly now that the Keystone XL has been rejected by the White House. By encouraging lawsuits, the DoS only further degrades FOIA response times.

One has to wonder if such delays are a bug or a feature.

Over the intervening years of the Keystone battle alternative pipelines have been built to skirt the delayed northern segment of the Keystone XL. In 2013 the White House fast tracked permitting of the southern Gulf Coast segment by approving a Keystoe Nationwide Permit 12, thereby sidestepping environmental review on hundreds of pipeline waterbody crossings. Opening of the Gulf Coast segment relieved a petroleum delivery bottleneck to Texas refineries. This not only accelerated tar sands delivery to world markets from alternative pipelines, but also increased midwest gas prices by lowering the cost of delivery of unrefined midwest oil to domestic markets.

Now, just in time for Christmas, more deals have come down the chimneys of the fossil fuel industry. Only a week after Paris COP 2, while you were distracted by the hysteria over wars with fanatics in a desert far, far away (the real ones for oil, the imagined for merchandising), Congress lifted the oil export ban (see KMP posts on the ban). This will further flood world markets with cheap American domestic oil and fracked natural gas.

UPDATE: The 40-year-old US oil export ban was lifted on December 16, 2015. More..

For the Canadians, the Keystone XL has been an interesting regulatory waltz.

Those old enough to remember the gas station lines of the 1970’s may recall the economic disruption caused by OPEC’s oil embargo over 40 years ago. In response, Congress passed the Oil Export Ban which brought energy security to America by insuring that oil produced in America stayed in America – with the exception of that oil exported to Canada.

Currently, with Mexican heavy crude production dropping, Mexican exports to Gulf Coast refineries has fallen. The Keystone XL pipeline compensates for the diminished Mexican supply by delivering Canadian diluted bitumen from the Alberta Tar Sands. Since the Jones Act requires that goods transported between US ports be carried on US-flagged ships staffed and owned by US citizen, it is cheaper for the Canadians to ship the refined oil back to Canada on non-US carriers. From there, the refined petroleum is available to world markets where it will fetch the highest price. The round trip makes the costly-to-extract tar sands oil competitive in a tight global market.

So while the Keystone XL has been billed as a jobs program and a safe oil supply for energy thirsty America, the pipeline allows foreign (Canadian) oil to be refined in the US where it can then be shipped to foreign markets (via Canada using non-US labor).

Things got dicey for the costly Canadian oil in December when OPEC refused to limit their oil production, crashing the world price of oil in an effort to drive the heavy grades of oil from Mexico, Venezuela, and Canada out of the market.

Meanwhile, on American soil (where the Keystone XL is projected to increase oil prices in the Midwest by relieving delivery bottlenecks and, thus, open the area to market-priced oil) the OPEC play has resulted in cheap gas and tighter production margins nationwide. In the end, it may be the market, and not climate concerns, that kills the Keystone.

Oddly, though, it was Citicorp who lifted North Dakota and Gulf Coast shale oil producers (aka frackers) from this Christmas season OPEC-induced funk when they made a little-noticed New Year’s Eve announcement stating that the Obama Administration’s Commerce Department would allow ultralight crude exporters to sidestep the export ban. Why the White House didn’t make the announcement themselves is unknown but, evidently, with a shale oil glut on the horizon, the drilling boom may be coming to an end unless other markets can be found.

Masked by the OPEC’s low prices is that the costly extraction of tar sands and shale oil is a clear indication that we’ve reached the end of cheap, easy oil. If energy security is truly an American priority, the export ban is more pertinent today than 40 years ago.

In a startling display of regulatory capture, the Department of State (DoS) revealed that its refusal to release data essential to the reading of its Keystone XL environmental reports is based on a bizarre interpretation of a phrase in a 3rd party contract. Their conclusion that the Keystone XL mapping data contained in their reports is not their property and, thus, cannot be shared with the public, comes from its own narrow interpretation of a contract between TransCanada and ERM, the firm tasked with writing the reports, and not from any explicit agreement with TransCanada.

As you may recall, in May of this year, after two years of delay, the DoS denied my Freedom of Information Act (FOIA) request for the Keystone XL mapping data saying that the data was not an “agency record” (read “Dept of State Defers to TransCanada“). I appealed the matter to the Office of Government Information Services (OGIS), the governmental agency tasked with assuring compliance with FOIA. After discussing the matter with DoS, OGIS stated in their letter of denial to me that:

TransCanada made its intention clear that it retained all rights to
that data and placed limitations on its use.

The Master Service Agreement entered into between TransCanada and ERM for purposes of the NEPA review contains a provision that reads as follows:

“All original drawings, plans, specifications, calculations, sketches, designs, reports, files (electronic or otherwise), records and other documents regardless of the media or means of storage and access thereto (“Records”) developed by, through or for the Contractor pursuant to this Contract or any Change Order shall be the absolute property of the DOS.”

According to Ms. Manheim, this provision does not establish State Department control over the information in question. The GIS mapping data you seek was developed by TransCanada for its own use. Although the data was made available to ERM for the purpose of ERM’s NEPA review, this data was not “developed by, through or for the Contractor.” As such, it is State’s position that the records you seek do not fall within the ambit of this provision.

In my reply to the OGIS, I felt compelled to define the word “all” before pointing out the self-contradiction in the DoS position:

Clearly, the GIS data were ‘developed by, through or for the Contractor,’ because without the data, the Contractor would have been unable to perform their contracted NEPA review, just as the public has been unable to review the FEIS, SEIS, and FSEIS without the data. It is disingenuous at best for TransCanada and DoS to claim they are going to build, operate, and regulate a pipeline according to federal and state law without telling the public where it is. The only goal achieved by TransCanada, ERM, and DoS in not releasing the GIS data is that evaluation of the project’s FEIS, SEIS, and FSEIS is made impossible. Certainly, such obfuscation is not compliant with FOIA and defeats the whole purpose of the public comment period.

As the third-party agreement between TransCanada and ERM is the only agreement DoS can point to, the determination that “TransCanada made its intention clear…” was made solely through misinterpreting the clause “developed by, through or for the Contractor.” By reading the clause as exclusive instead of inclusive and by parsing “all” to mean something other than all, the DoS effectively absolves itself of any regulatory oversight of anything contained in their reports.

The OGIS letter of denial:
My full response to the OGIS:

Full text:

Dear Ms. Nisbet,

Thank you for your review of the Department of State’s (DoS) denial of my FOIA request F-2012-25735. The DoS response to your inquiry is unsupported and contradictory and suggests that the DoS remains out of compliance with FOIA.

Your letter states that

…TransCanada did make certain Geographic Information Systems (GIS) data available to State while it was conducting a National Environmental Policy Act (NEPA) review, the corporation placed limits on the use of that data; it is State’s position that the records you seek cannot be considered “agency records.

TransCanada and the DoS seem to have an agreement surrounding the proposed Keystone XL Pipeline, yet, the agreement and to what extent it relies on third party agreements between TransCanada and its contractors is unknown. So while the DoS claims the GIS data is not an “agency record” per an agreement with TransCanada, we have not seen this agreement nor, perhaps, other agreements that might define “agency record.” These agreements are the subject of my current FOIA F-2014-16267.

The one agreement we do know of is that between TransCanada and ERM, the firm that produced the Keystone XL Pipeline Final Supplemental Environmental Impact Statement (FSEIS).

TransCanada – ERM Master Services Agreement

The Master Services Agreement (MSA) between TransCanada and ERM states under Section 2g that:

Confidential Information does not include information that is: (ii) generally known to the public, as of the date and to the extent that such information becomes so generally known;

As your letter also cites, the MSA also states under Section 24.1 that:

All original drawings, plans, specifications, calculations, sketches, designs, reports, files (electronic or otherwise), records and other documents regardless of the media or means of storage and access thereto (“Records”) developed by, through or for the Third-Party Contractor pursuant to this Contract or any Change Order shall be the absolute property of the Department.

Keystone XL Pipeline Route Data is Public Information

The proposed Keystone XL Pipeline route is not confidential and qualifies under the MSA as generally known to the public. Basic route information has been made public by the Montana Department of Environmental Quality (MDEQ), the South Dakota Public Utility Commission (SDPUC), the Nebraska Department of Environmental Quality (NDEQ), and the Railroad Commission of Texas (TxRRC). The Federal Energy Regulatory Commission (FERC) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) both consider pipeline routing data to be in the public domain. Once constructed, the route will be marked in the ground with stakes and will be visible everywhere in the world via Google Earth. The United States Army Corps of Engineers and the United States Fish and Wildlife Service have both released Keystone GIS data to the public. Clearly, the Keystone route is generally known to the public and is not intended, by either state or federal regulators, to be kept secret from the public.

Essential Data, by definition, is an Agency Record

The MSA is very clear when it states that “All original drawings, plans, specifications…” are agency records. “All” means all – everything used by the contractor to create the report. The phrase “developed by, through or for the Third-Party Contractor,” augments “all” and is intending to include documents, not exclude them. If the data is integral to the creation of the report, referenced throughout the report, included in the report, and essential to the reading of the report, it is part of the report and, as such, an agency record.

The GIS mapping and route data is intended to be included directly in the environmental reports issued by the DoS, including the Final Environmental Impact Statement (FEIS), the Supplemental Environmental Impact Statement (SEIS), and Final Supplemental Environmental Impact Statement (FSEIS). For example, in the 2008 Keystone XL FEIS:

Volume 1, Environmental Reports. Section 3: Affected Environments: This section contains 23 tables referencing thousands of milepost markers and/or waterbodies and distances based upon them, yet no where in the report are the actual longitude and latitude of the milepost markers given.

Volume 2, Pipeline Aerial Route Sheets: This section contains over 1,000 maps, yet all have had their geolocation information removed, including longitude and latitude, rendering them meaningless as maps.

By no means is this a complete list of the documents containing incomplete and missing GIS references. The cited volumes appear to be incomplete and most of the volumes (Vol 6-18?) appear to be missing altogether. The subsequent Draft SEIS, SEIS, and FSEIS reports published by the DoS suffer similar data gaps.

It is obvious that without GIS mapping data the Keystone XL Pipeline reports published by the DoS are meaningless and unreviewable by the public, which is supposed to be allowed to comment on them. DoS’ position is nonsensical. In your letter you state:

The GIS mapping data you seek was developed by TransCanada for its own use. Although the data was made available to ERM for the purpose of ERM’s NEPA review, this data was not ‘developed by, through or for the Contractor.’ As such, it is State’s position that the records you seek do not fall within the ambit of this provision.

This statement is self-contradictory. Clearly, the GIS data were ‘developed by, through or for the Contractor,’ because without the data, the Contractor would have been unable to perform their contracted NEPA review, just as the public has been unable to review the FEIS, SEIS, and FSEIS without the data. It is disingenuous at best for TransCanada and DoS to claim they are going to build, operate, and regulate a pipeline according to federal and state law without telling the public where it is. The only goal achieved by TransCanada, ERM, and DoS in not releasing the GIS data is that evaluation of the project’s FEIS, SEIS, and FSEIS is made impossible. Certainly, such obfuscation is not compliant with FOIA and defeats the whole purpose of the public comment period.

Unsupported and Contradictory Claims by DoS and OGIS

The facts do not support the DoS’ claim that “TransCanada made its intention clear that it retained all rights to that data and placed limitation on its use.”

The DoS Keystone XL Pipeline documents do not contain any record of TransCanada stating this intention.

The DoS Keystone XL Pipeline documents do not contain any document or agreement between the DoS, TransCanada and/or other third parties directly addressing the use of GIS data.

The DoS relies on a convoluted and nonsensical reading of the MSA between TransCanada and ERM to exclude otherwise public records from review.

The DoS has obfuscated the facts and has not been forthcoming in its response. My concern is that if this matter cannot be resolved administratively, litigation may become necessary. I urge you to reconsider your denial of my case and make every effort to clarify these matters with DoS, bring them into compliance with FOIA, and ensure the integrity of the public review process.

After nearly a one-year FOIA appeal process, the Department of State (DoS) has reversed its earlier finding that it did not have Keystone XL mapping data and now has revealed that it is withholding the pipeline’s routing data at the request of TransCanada, the company building the project.

In March of 2012 I filed a Freedom of Information Act (FOIA) request with the DoS for the milepost marker and GIS route data missing from the Keystone XL Final Environmental Impact Statement. Without this data, one cannot make sense of the report’s analysis. Met with delay, I began researching basic route data from a variety of sources and over the next two years compiled the only publicly-available interactive map of the pipeline from Montana to the Texas Gulf Coast. During this time, the DoS released two additional reports, the Supplemental Environmental Impact Statement and the Final Supplemental Environmental Impact Statement, both of which further redacted mapping data.

It wasn’t until June 2013 that the DoS responded to my initial FOIA request, stating that “Neither Cardno ENTRIX nor TransCanada ever submitted GIS information to the Department of State, nor was either corporation required to do so.” TransCanada disputed this finding.

Perplexed by how the DoS could make an environmental analysis of the Keystone XL without mapping data, I appealed the finding to the DoS Appeals Review Panel. On May 15, 2014, after 10 months of further delay, the panel issued its finding, stating that:

TransCanada made certain pipeline mapping data was available to the Department’s third-party contractor for the contractor’s use solely in connection with the National Environmental Policy Act review of the proposed Keystone XL Pipeline Project. TransCanada made clear that it retained all rights to the data and placed express limitations on its use. As a result, the Department lacks the requisite control over these files for them to be considered ‘agency records’ for purposes of the FOIA.

In other words, the DoS will not release mapping data essential to evaluation of their Keystone XL environmental reports, as the foreign corporation building the project wishes that it remain private. Unspoken is that the third-party contractors who authored the DoS reports are leading consultants to the oil and gas industry and may be susceptible to divided loyalties. Typically, where conflicts of interest may arise, independent review is encouraged. Yet, in this case, by withholding data the DoS has effectively shielded the 2,000 mile diluted bitumen pipeline from open and independent review.

This lack of transparency has plagued the Keystone XL. When I approached the Federal Energy Regulatory Commission in 2012 regarding TransCanada’s claim that Keystone XL route data was secret due to National Security concerns, I was told that this was certainly not the case as, once built, the buried pipeline will be marked with stakes in the ground. To expedite approval of the southern Gulf Coast segment of the Keystone, the White House fast-tracked the process through the United States Army Corps of Engineers (USACE), effectively sidelining the Environmental Protection Agency from the permitting process. It was only after USACE issued a Nationwide Permit 12 – obviating independent review of over 600 waterbody crossings, that river, stream, and wetland data was made public.

If, as proponents claim, the Keystone is of such great importance, why are we not engaged in a more educated discussion? When journalists, national non-profits, landowners, Native American tribes, academics, and activists are contacting me, a photographer, for routing information, the government’s entire environmental review methodology and regulatory regime is called into question.

During the event, I was often reminded of a young man I met decades ago while traveling through the Nusa Tengara archipelago of Indonesia. I wrote about him in “A Vagabond World,” my book on world travel. While negotiating the city of Kupang, West Timor with a tourist map, I consulted the teenager after I became lost on a side street. He did not speak English and I spoke only basic Bhasa Indonesian. He took my green tourist map, turned it this way and that, and finally returned it to me with a shrug. I realized he had never seen a map.

Before then, it had never occurred to me that the map is the purview of an educated class. It is a human construct of a physical space, which effectively (and often unquestioned) dictates the meaning of a landscape. The cartographer’s illusion. The tourist bureau that issued my map of Kupang had one view of the city; city engineers, undoubtedly, had quite another.

To this day, when I think of Kupang, I imagine that friendly green map, despite the unforgettable smell of the open sewers. In my mind it became the city’s logo – in the same way that a map of the lower 48 says “United States.” Each map, designed for a different purpose, creates a different image and feeling in our mind, and deeply influences how we both perceive and engage with a physical space. And while exploring without a map encourages an intimate understanding of a landscape, a well-engineered map establishes a dialogue within the community.

In the case to the Keystone XL, where neither TransCanada nor the Department of State will provide a map, we are placed in the same position as that young man from the Third World: we turn the simplistic company map this way and that, and unable to make sense of it, abandon it altogether.

As reported earlier on this blog, in response to my April 2012 FOIA request for routing data for the proposed Keystone XL pipeline, the Department of State (DOS) revealed in June of this year, for the first time, that TransCanada was not required to submit the data and the DOS never required or requested that it be submitted, despite the fact that it is referenced throughout the Final Environmental Impact Statement (FEIS) and Supplemental Environmental Impact Statement (SEIS). I asked TransCanada’s press office if this were true and was told by email,

“It is our understanding that the DOS has been given the most current route information. If there is additional information they require, we will be happy to provide that to them.”

As my follow up emails and telephone calls to TransCanada went unanswered, I was unable to determine who at the DOS received the information and when they received it.

So, the bigger questions remain:

How does the the DOS fulfill it’s regulatory duty if it does not have the route data, has it but can’t find it, or worse, doesn’t even know whether it has or doesn’t have the data?

If the DOS is not reviewing the pipeline’s Final Environmental Impact Statement (FEIS) and Supplementary Environmental Impact Statement (SEIS), who is?

With these questions unanswered, how is the public supposed to have confidence that the DOS has performed adequate due diligence before exercising its critical authority on such a highly controversial and dangerous pipeline project, particularly when our national security is at risk?

The controversy and challenges facing the Keystone XL in the state of Nebraska offer insight into these questions.

The pipeline permit issued by the Nebraska Department of Environmental Quality (NDEQ) authorizes a routing corridor of 2,000 feet, a zone over 1/3 of a mile wide in which TransCanada can build their pipeline. Yet, while TransCanada has a 110-foot center-line route selected within this corridor, the actual route within the corridor remains a corporate secret – even to the NDEQ, who says that they do not have rights to TransCanada’s information. This jibes with the DOS’ claim that that they themselves do not possess the routing data.

More astonishing is the experience of Nebraska landowners. According to Jane Kleeb of Bold Nebraska, TransCanada will not reveal the route across a landowner’s property unless that landowner first signs a contract for the pipeline easement in perpetuity.

Meanwhile, TransCanada claims that only 10-30% of Nebraska landowners whose land is crossed by the proposed pipeline do not support the pipeline. Kleeb points out that this can’t possibly be true since 35% of landowners are members of the Nebraska Easement Action Team (NEAT), all of whom refuse to negotiate easements with TransCanada unless the state gets involved. According to NEAT, “no one in Nebraska government in over five years – not your Governor, Attorney General, NDEQ, or Legislature – evaluated the Easement Agreement, the document TransCanada proposes to use with landowners as the controlling terms for how your land will be affected.” As NEAT does not represent all landowners in opposition, Kleeb thinks the opposition numbers are closer to 50%.

In their email to me, TransCanada’s press office went on to say:

In fact, the pipeline route is placed on the National Pipeline Mapping System, which allows any first responder to call up information on any pipeline in their jurisdiction (pipeline, route, product) so that they have current and correct information to assist them in carrying out their duties. This is not new and is a long-standing practice because pipelines are deemed to be critical infrastructure so some information may not be part of a publicly available document to protect the safety of our people, landowners and the communities where these lines run and these important assets.

In other words, we’ll tell you where it is once we build it – as you’ll be cleaning up the mess.

The Keystone Mapping Project’s Google Earth view has seen a number of updates recently, including expanded informational windows, addition of the 2,000 foot Nebraska routing corridor, and the correction of a number of rendering errors.

Since December I’ve made close to two dozen calls to the friendly and professional staff at the Department of State in an effort to track down my FOIA request.

Early on, the Office of Environmental Quality and Transboundary Issues referred me to the Bureau of Oceans and International Environmental and Scientific Affairs. I explained the whole matter of milepost markers and waterbody crossings to the kind woman there – only to learn, over a month and five calls later, that she was transitioning out of the job. Her parting voice mail assured me that the DOS had the GIS information I was looking for and that a new report from TransCanada would be coming out soon. Many calls later, the best her replacement could do was to say that she didn’t have a response for me. I think she got tired of my follow up calls, though. Another month later, in mid-March, I received an email from the person reviewing my request, saying:

Since you have exchanged messages and have spoken on the phone with various of my colleagues concerning your above referenced case, I just wanted to let you know that I was assigned as reviewer; that I have finished my work; and that I am therefore sending the case for senior review. I hope that the case will be concluded in the very near future.

“Finally, pay dirt!” I said to myself. A year after filing my request I was going to receive a response. The thing is, he didn’t send along his number. I waited. Emailed. Waited some more. Six weeks later I tracked him down and left a message.

Turns out, he had written me a letter and it was sitting over in Legal waiting for review. Over the ensuing weeks I left more messages and sent a couple of emails and there my letter sat in Legal. I imagined it buried under other letters just like it in the “In” box, waiting it’s turn.

I tried to not take it personally, but yes, the reviewer, too, tired of me. He passed me off to the Public Liaison, a cheerful woman who insisted she was going to get to the bottom of it. She explained the whole FOIA process to me. My request would have a tracking number assigned to it. Then it would be checked that it was valid and, indeed, something the DOS could respond to. For the first time it occurred to me that the DOS could be getting totally bizarre FOIA requests for such things as Wayne Shorter’s overseas play lists or pizza recipes used in Ghana.

My request would than be assigned to a geographic team and a privacy team, where a case analyst would conduct a review and do cable searches before sending it out to “taskers” to find the data. The final step would find my request returned for review and evaluated for how it fit with the law.

Come again? I did all that tasking a year ago! I told them who to call. Gave them the numbers. Yet, there the letter sat.

New to the KMP is the news feed in the footer. I call it the Narrative for the media’s influence on the public discourse. Often the discussion is not substantive.

Driving much of the public’s perception of the Keystone XL is the media’s horse race mentality – in this case, editorial and opinion pieces often based on misinformation. To quote Marshall McLuhan, “The medium is the message.”

Myth 2: Since the Keystone’s Canadian oil supplants Mideast oil, it increases energy security for the US. To the contrary, the diluted bitumen piped through the Keystone will be traded on world markets, primarily to China. (Verlager). Also, in this age of global warming where green tech is clearly the future, doubling down on fossil fuels could be interpreted as making the country less secure.

Myth 3: The Keystone will lower US gas prices. To the contrary, by relieving a delivery bottleneck of midwest oil to Gulf Coast refineries, the Keystone will actually increase gas prices in the midwest. (Verlager)

It seems that with the Keystone XL, everything is secret – even the public comments to the Department of State’s (DOS) FEIS. You’ll have to file a FOIA request to get them.

Official comments to the DOS are due April 22 and should be sent to keystonecomments@state.gov. I’m posting a copy of my comments below. Feel free to copy your own below, as well. Alternatively (or additionally), 350.org has a convenient comments submission form here.

My comments to the DOS:

———————————————-

After careful review, I have found the FEIS and SEIS for the proposed Keystone XL project lacking in key data and detail that preclude a proper evaluation of the Keystone XL’s environmental impacts. Of greatest concern are the insufficiency of both the GIS routing data and spill mitigation details in the report.

Inadequate Data

Conspicuously missing from the FEIS and SEIS are the location data for the pipeline’s key landmarks, including milepost (MP) markers and waterbody crossings. Despite their absence, the MP markers are repeatedly referenced throughout both the project and DOS documents and are critical for all discussions of the pipeline route, potential environmental impacts, and surrounding points of interest.

In regards to the SEIS specifically, the GIS data contributed by the Nebraska Department of Environmental Quality (NDEQ) is inadequate for the following reasons:

Milepost Markers: The NDEQ report furnishes MP markers for even miles only, whereas the FEIS requires accuracy to the nearest tenth of a mile.

Waterbody Crossings: The NDEQ acknowledges that the Nebraska Keystone route has 163 waterbody crossings, but the NDEQ’s digital map file only contains the five largest.

Gas & Water Wells: The gas and water well data contained in the FEIS has not been updated to reflect the revised Nebraska route.

While all parties, including PHMSA, FERC, and all state agencies, acknowledge that the pipeline’s GIS data is public information, neither the DOS nor TransCanada will release this information. The hardcopy maps in the FEIS do not contain longitude and latitude information. TransCanada’s manager of Stakeholder Relations, Terry Cunha, has gone so far as to claim that the Keystone XL route location data is a matter of national security. If this is true, this danger has not been conveyed to the public nor acknowledged in the subject Report. The Report and the FEIS on which it relies cannot be considered suitable for public review until a complete open-source digital dataset has been made readily available at no cost.

Inadequate Spill Mitigation

The FEIS and SEIS also fail to sufficiently addresses TransCanada’s preparation for spill prevention and mitigation. It is alarming that TransCanada has yet to develop an Emergency Response Plan for the Keystone XL. A non-profit group, Plains Justice, brought these deficiencies to public attention over two years ago in their report, The Northern Great Plains at Risk: Oil Spill Planning Deficiencies in Keystone Pipeline System. Given the experience of the 2010 pipeline spill in Kalamazoo, Michigan, where cleanup costs are $1 billion and climbing, TransCanada’s $200 million third party liability insurance is grossly inadequate. Permitting should also be subject to EPA review. It would be negligent to repeat the Gulf Coast approval process, whereby USACE gave sweeping project-wide construction approval to TransCanada through a Nationwide Permit 12 and withheld waterbody crossing data until after granting their approval.

It is disturbing that TransCanada has not been required to fully disclose details of the pipeline route to the public or to document adequate emergency spill response measures. The public review process requires more accurate and complete information than have been provided to date by TransCanada, the DOS, and all state agencies regulating the pipeline.

On June 26, 2012, I wrote about my appeal of the Department of State’s (DOS) Denial of Expeditious Processing of my FOIA request for GIS route information. At the time, the United State Army Corps of Engineers (USACE) was considering a Nationwide Permit 12 for the Gulf Coast segment of the Keystone route, thereby bypassing EPA review of the pipeline’s waterbody crossings. As my appeal noted, without public disclosure of the milepost and waterbody GIS data, approval of the Gulf Coast Keystone route was bypassing public review:

Public is Being Denied Due Process

Despite the denial of the Presidential Permit, construction of the Keystone XL is currently underway. TransCanada, a foreign company, has been accused of using dubious means to gain right-of-way to private property, including the declaration of eminent domain. Currently, TransCanada is seeking expedited permitting by the Army Corps of Engineers for the Gulf Coast route. The Army Corps has promised to reply by June 26. While individual property owners are certainly aware of the pipeline’s presence, the wider community and citizens around the country are unable to make a proper review of the project without the MP and GIS data. To release key data only after landowners have undergone substantial hardship or the project is completed, would be to deny landowners, communities, and the public due process.

It was not until January of this year that I discovered that, on July 12, 2012 (nearly a month before USACE issued its permit), the DOS had written – yet failed to send – me a letter denying my appeal for the expeditious processing of my FOIA request for GIS routing data. Incredibly, in their letter the DOS claims that this case is not eligible for expedited processing as it does not involve “Loss of substantial due process rights” – this despite the lack of transparency in DOS and USACE processes and the eminent domain proceedings being brought against Texas landowners by TransCanda, a Canadian company. The letter is below.

As the one year anniversary of my FOIA request approaches, I have made nearly a dozen calls to the DOS, speaking to numerous individuals in an effort to determine the disposition of my request and, for that matter, whether the DOS even has the GIS route data. I received a polite email from a gentleman at the DOS the other day saying that my request would be addressed shortly, to please stop calling, and to contact him with any questions. He didn’t include his number.

As the disasterous Kalamazoo spill highlights, the Keystone XL’s waterbody crossings pose an extreme environmental threat. Yet, while the Department of State’s (DOS) Final Environmental Impact Statement (FEIS) does identify the pipeline’s waterbody crossings and references them by milepost (MP) marker, neither the DOS, TransCanada, nor the United States Army Corps of Engineers (USACE) will release the location data for the MP markers.

In mid-July that changed somewhat when environmental groups obtained, through Freedom of Information Act (FOIA) requests, Gulf Coast waterbody crossing data for the Tulsa and Galveston District offices of USACE. Missing still is data from the USACE Fort Worth District Office. USACE offices only release the data after the offices have approved TransCanada’s application for a Nationwide Permit 12 (NWP 12). The NWP 12 allows the company to sidestep case-by-case waterbody environmental review by giving blanket approval for the entire route. While it is disheartening to see the pattern of obfuscation established by TransCanada and the DOS, adopted by USACE, it’s not surpising.

The Keystone fight has also brought into question the use of eminent domain by private companies. One has to wonder how many landowners would have challenged TransCanada more forcefully had they not been bullied by eminent domain proceedings.

Updated to show the Waterbody Crossings, the new Keystone Mapping Project Google Earth view can be downloaded here:

The guy in TransCanada’s Data Integrity Program was very friendly, but once he found out I wasn’t with the company he said “You’ll have to talk to Public Relations.” He wouldn’t say why. It took me a while to track down PR’s phone number, only to have neither my calls nor emails returned. It didn’t seem like very good PR. Then again, I was asking for the milepost marker longitude and latitude data for TransCanada’s proposed Keystone XL pipeline as referenced throughout the Final Environmental Impact Statement (FEIS) published on the Department of State (DOS) website. Why would PR have this information? I was confused.

I called TransCanada Stakeholder Relations and spoke to a very nice woman who said that TransCanada doesn’t release the milepost data so as to protect landowners. That didn’t make sense because many landowners are angry with TransCanada for making dubious use of common carrier status (typically used for telephone and public utility cables and pipelines) in order to declare eminent domain and force a right-of-way for their pipeline upon property owners. She clarified that they were protecting from public retribution those landowners who had signed leases. Evidently, someone’s car was vandalized. What about the communities directly impacted by the pipeline? She didn’t know. And how is one supposed to make sense of the FEIS without the oft-cited milepost data? She said that the milepost markers would be finalized and made public when the pipeline was completed and operating. Wouldn’t that be a little late? The whole point of public review was to look at the project ahead of time, no? Or maybe that was TransCanada’s point. Anyway, if I really wanted the milepost information, she helpfully suggested, I could overlay the striped-down FEIS maps, which have been purged of all longitude and latitude information, onto real maps and get the location information that way. I was getting more confused. It was nice that she acknowledged the information was public, but it seemed like a waste of effort when they could just give me the data.

Our plan has undergone well over three years of environmental review by numerous reputable federal and state agencies. The review was the most comprehensive process ever for a cross-border pipeline.

I was buoyed to hear that TransCanada was as concerned for America’s safety as I, so I called the office of Sean McMaster, the Vice President of Stakeholders Relations. Certainly, he would help me make sense of the FEIS and release the milepost data. My calls went unreturned. Eventually I was connected to the Vice President of Public Sector Relations, who said I was the only one ever to request the Keystone milepost data. Someone would get back to me, he said. He wasn’t sure why the information wasn’t available and then added the caveat, or what the information is. It only confused me more that the Vice President of Public Sector Relations for a company striving to be the “leading energy infrastructure company in North America” did not know about milepost markers.

Eventually, Terry Cunha, Manager of Stakeholder Relations for the Keystone called me. Mr. Cunha said that milepost data was a matter of national security and that the information had been released to regulators. If the public knew where the pipeline was, he said, “They could impact it. They could drop a backhoe on top of it.” I reminded him that both the US Department of Transportation Pipeline and Hazardous Materials Safety Administration (PHMSA) and the Federal Energy Regulatory Commission (FERC) regard pipeline data as public information. Furthermore, the states of Texas and Montana post the proposed Keystone XL route on their web sites – it’s just the milepost data that is missing, preventing one from making a complete analysis of the FEIS. In fact, a friendly fellow at FERC told me that physical stakes would mark the mileposts just for the reason cited by Mr. Cunha: construction crews need to know where pipelines are buried.

“We’re not going to give it to you,” Mr. Cunha said bluntly.

With no one left to call, I had become dizzy with confusion, as if I was breathing the benzene released by a diluted bitumen spill. My questions have only multiplied:

Which regulators have received the milepost data? PHMSA does not get the information until after the project is approved. Regulators in the states of South Dakota, Nebraska, Oklahoma, and Texas all claim to have not received the data. My FOIA request to the DOS is anticipated to take 5 to 12 months.

As the FEIS is incomplete without the milepost data and, as I am the only one in the country to request the milepost data (according to both TransCanada and the DOS), on what basis does TransCanada CEO Russ Girling claim “The review was the most comprehensive process ever for a cross-border pipeline?”

Why has TransCanada failed to notify the public that the Keystone XL presents a “national security” risk?

How do American military service personnel and veterans feel about a foreign corporation hiding behind “national security” when withholding critical environmental review information concerning the company’s private diluted bitumen (tar sands) pipeline bisecting the American heartland?